False statements conviction of former Rep. Fortenberry reversed on appeal over claim of improper venue for trial

December 28, 2023
by
Ben Marquis

Former Rep. Jeff Fortenberry (R-NE) was convicted in 2022 by a federal jury in California of having twice in two separate instances made false statements to federal investigators probing illegal campaign contributions at a Los Angeles fundraiser event in 2016.

That conviction was just reversed by a Ninth Circuit appeals court panel on the basis that the trial and conviction occurred in an improper venue, the Washington Examiner reported.

In essence, the judges ruled that Fortenberry should have stood trial in either Nebraska or Washington D.C., where the false statements to FBI investigators were made, rather than in Los Angeles, California where the illegal campaign contributions at the center of the investigation were said to have occurred.

Made false statements during investigation of illegal campaign contributions

In March 2022, the U.S. Attorney for the Central District of California announced in a press release that Rep. Fortenberry had been convicted by a jury of "one count of scheming to falsify and conceal material facts and two counts of making false statements to federal investigators."

The false statements were made in relation to an FBI investigation into allegations that billionaire Nigerian businessman Gilbert Chagoury had illegally contributed as much as $180,000 to four separate members of Congress through so-called "straw donors," including $30,000 to Fortenberry's re-election campaign at the 2016 fundraiser in Los Angeles.

Chagoury ultimately entered into a deferred prosecution agreement in 2019 and paid a $1.8 million fine after he admitted his violations of campaign finance laws, but in the meantime, federal investigators had already made use of a cooperating witness to go after Fortenberry in 2018 and then twice interviewed the congressman in 2019, once at his home in Lincoln, Nebraska and once at his attorney's office in Washington D.C.

During both of those interviews with federal investigators, Fortenberry falsely claimed to not know of the illegal contributions and also falsely claimed that he had not been informed of the violations by the cooperating witness. Those false statements violated 18 U.S.C. § 1001.

Per the Examiner, Fortenberry was then indicted over the false statements in 2021 and was tried and convicted in a Los Angeles court in 2022, after which he was later sentenced to two years probation, ordered to pay a $25,000 fine, and perform community service -- which also prompted the lawmaker to resign from Congress.

Conviction reversed on appeal over improper venue for trial

According to the Ninth Circuit panel's 23-page ruling on Tuesday, former Rep. Fortenberry appealed his conviction in part on a claim that the district court had improperly denied his motion to dismiss the case for being tried in the wrong venue.

"The Constitution plainly requires that a criminal defendant be tried in the place where the criminal conduct occurred," Judge James Donato wrote. "The district court determined, and the government urges on appeal, that a Section 1001 violation occurs not only where a false statement is made but also where it has an effect on a federal investigation."

"We conclude that an effects-based test for venue of a Section 1001 offense has no support in the Constitution, the text of the statute, or historical practice," he added. "Consequently, we reverse Fortenberry’s conviction without prejudice to retrial in a proper venue."

In the end, Donato concluded, "Fortenberry’s trial took place in a state where no charged crime was committed, and before a jury drawn from the vicinage of the federal agencies that investigated the defendant. The Constitution does not permit this. Fortenberry’s convictions are reversed so that he may be retried, if at all, in a proper venue."

Could still be retried in proper venues

The Associated Press reported that former Rep. Fortenberry, along with his wife Celeste, heralded the court's ruling and said in a statement, "We are gratified by the Ninth Circuit’s decision. Celeste and I would like to thank everyone who has stood by us and supported us with their kindness and friendship."

However, a spokesman for the U.S. Attorney's Office in L.A., Thom Mrozek, told the AP, "The ruling does not preclude a retrial on the charges that then-Congressman Fortenberry made multiple false statements to federal agents. We are evaluating potential next steps before deciding how best to move forward."

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